When I was in law school, a well-respected professor told me that he would rather handle a murder case than a DWI case. This, to me, was a bold and surprising statement. Nearly 20 years later, I have heard similar statements made by other well-respected legal professionals and I now have a good understanding of the facts supporting the position of these skilled attorneys.

Unlike many other criminal charges, the defense of driving while intoxicated cases is a multifaceted proposition. In most circumstances, a typical criminal case begins and ends in the criminal courtroom with not much in between. However, the defense of an alcohol related driving offense (DWI, DWAI, DUI, etc…) is a war fought on multiple fronts.

Living in the suburbs (where I practice), with limited access to public transportation, most people take their driving privileges for granted until they are faced with their first Court appearance in a DWI case. In almost all circumstances, a judge sitting in the State of New York must suspend the driving privileges of an individual accused of driving while intoxicated.

In the case of an individual who agrees to submit to a chemical test (breath, blood or urine) following their arrest, the law in the State of New York mandates that if the defendant's blood alcohol concentration was .08 or higher, their driving privileges must be suspended pending prosecution pursuant to New York's Prompt Suspension Law at their arraignment (usually the first Court appearance).

Moreover, in cases where the individual is alleged to have refused to submit to a chemical test (breath, blood or urine), the Court must suspend their driving privileges at their arraignment and schedule a Chemical Test Refusal Hearing at the New York State Department of Motor Vehicles (before an administrative law judge).

Although a person whose driving privileges are suspended pursuant to the Prompt Suspension Law may be entitled to request a Hardship Driving Privilege (which at a minimum will allow them to drive to and from work and/or school), this is not the case where a refusal to submit to a chemical test is alleged.

In this situation, the court is required to schedule a Chemical Test Refusal Hearing at DMV within fifteen days of the driving privilege being suspended. During the period between the first court appearance and the appearance before DMV, the individual cannot lawfully operate a motor vehicle under any circumstances (and faces criminal prosecution if caught driving in violation of the court order). Once they appear at DMV, they are at risk of losing their driving privileges for at least one year (or longer if there are prior alcohol related driving convictions on their record).

In both circumstances, the driver may be entitled to a conditional license (citation). However, in the case of a chemical test refusal, this cannot be accomplished until there is an alcohol related driving conviction in criminal court (which can take time to resolve, leaving the driver without any driving privileges while the matter moves through the court system.)

Making matters even more difficult and following a DMV finding that a driver refused to submit to a chemical test, should they be so fortunate to have their criminal case dismissed, they will not be able to get a conditional license (again, to be eligible for a conditional license, there must be a alcohol related driving disposition in criminal court) and will have to sit out the entire revocation period without being able to lawfully drive.

Keeping in mind that this post is about the need for an attorney in a DWI case and not about losing or keeping driving privileges, I could dedicate the remainder of my writing to the numerous reasons for retaining an experienced DWI attorney.

Remember, what I described above, for the most part, only covers the first court appearance and the fifteen-day period that follows (in the case of a refusal). It is not surprising that when I am contacted by people that choose to attend their first court appearance without an attorney, they, for the most part, are usually blindsided by what took place.

Defending and advising a client in a DWI case requires not only extensive knowledge of the New York State Vehicle and Traffic Law, Criminal Procedure Law, and local court procedures, it also requires experience with the administrative procedures of the New York State Department of Motor Vehicles (which in these matters, are growing less driver friendly by the day) and the areas in which many of these bodies of law and procedure intersect.

Further, when thinking about heading to Court without an attorney, the unrepresented DWI defendant should consider the following:

  • How do I request a hardship driving privilege and am I eligible for one?
  • What is an ignition interlock device and will I eventually be ordered to have one installed?
  • Will multiple alcohol related driving convictions subject me to DMV regulations imposing an extended or permanent loss of my driving privileges?
  • What is a driver responsibility assessment?
  • Will I have a criminal record if I am found guilty of these charges?
  • What is the New York State Drinking Driver Program?
  • What is an OASAS evaluation and how do I go about getting one?
  • Can I be incarcerated as a result of these charges and will I have to post bail?
  • When can a DWI charge be a felony?
  • If I am an out-of-state driver, how will these charges and a potential conviction affect my driving privileges in New York and my home state?

While the above list could go on and on, the point to be taken away from this is that a DWI arrest is a serious matter with serious consequences that should never be taken lightly. Consulting with an experienced DWI attorney prior to the first court appearance, at a minimum, will prepare you for what to expect in court and what can be done to defend you against these charges.

Having spent the majority of my legal career involved in the prosecution and defense of DWI cases, I welcome you to explore my website, learn about my background as an attorney and contact me to discuss your DWI case (or any other matter requiring the services of a Rockland County Criminal Defense Attorney).

Brian Berkowitz, is a former prosecutor and a DWI, Criminal Defense and Traffic Ticket Attorney representing clients in Rockland County and the State of New York.

Law Office of Brian Berkowitz, 222 North Main Street, New City, NY 10956. 845-638-9200.


TWITTER: @BerklawBrian

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Brian Berkowitz


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